Phil Spector defense attorney Doron Weinberg said in a sentencing memorandum filed Wednesday that Spector isn't disputing the mandated sentence of 15 years to life in prison for his second-degree murder conviction, but is requesting the lowest possible enhancement for Spector’s alleged use of a firearm—three years—instead of the four years requested by the prosecution.
25 comments:
In that photo, PS looks like one of those scarey ventriliquist dummies like the one in the Anthony Hopkins movie "Magic"
With his sense of self-entitlement and illogical sense of superiority, I am surprised he didn't ask for house arrest with round-the-clock bodyguard/go-fers.
Blogonaut,
Given your knowledge of this case so far, what are the chances that the appeals court would go so far as to state/rule that the misconduct was so great that not only is the conviction overturned but also the charges are thrown out due to the inability for Phil Spector to receive a fair trial because of the negative media etc.?
Statistically, a very small percentage of criminal convictions are reversed by courts of appeal every year—about 15% or less. To reverse a conviction, a criminal defendant in California must not only show error by the trial court but must also demonstrate that justice miscarried—usually by demonstrating the probability of a result more favorable to the defense if the error had not occurred.
That said, we have never heard about a more prejudicial admission of Evidence Code Section 1101 evidence in such an equivocal case, so we think the chances of a reversal of the judgment in Spector II are good.
However, a reversal by the Court of Appeal or the California Supreme Court will give the People the option of a retrial—unless a reviewing court finds that Spector’s motion for judgment of acquittal should have been granted (i.e. that there was insufficient evidence from which a jury could have concluded that Spector was guilty). This in our opinion is very unlikely.
Adriano De Souza’s testimony alone, if credited by a jury, would in our view be enough to support a conviction. It is not up the Court of Appeal to make credibility determinations.
Therefore, the best case scenario for Spector seems to be the Court of Appeal granting a motion for bail pending appeal and then ordering a new trial on the merits.
To respond to the other commenter, even though you were being sarcastic, we see no reason why Spector could not be placed under house arrest as a condition of bail pending appeal, since it would serve the purpose of protecting the public. Since Spector’s conviction is not yet final, punishing Spector is not a legitimate part of the question of bail pending appeal. Insuring that Spector will not run and protecting the public are the only legitimate factors under the law.
Even so, allowing Phillip Spector out on bail pending appeal is going to be extremely unpopular with the public, which is why the Court of Appeal is more likely to make that order.
Blogonaut did you mean in your last paragraph that the Court of Appeal is more likely to grant appeal bail or not? I think they should grant appeal bail. California is broke it costs a lot to house Mr. Spector. Further he has posted a million dollar bail that they would have to give back. Also the State should figure at his age and poor health if he makes a run for it they make out and with the added stress of being a fugitive his odds of survival are very slim.
So after the sentencing then will Doron immediately file an appeal and ask for appeal bail? What is the procedure? If all the planets and stars align how fast could Spector be out on bail if the Appellate Court grants bail?
What's the next step for the appeals process? How fast can they get Spector out on bail if all goes well?
Blogonaut,
On average, how long does the request for bail pending appeal generally take? Thanks.
If all goes well how fast can Spector be out on appeal bail?
To answer the last four comments:
First, please keep in mind that I am not a part of the defense team and am not privy to the game plan being pursued by Phillip Spector’s counsel on appeal. So I can only draw on my experience and make some generalized assumptions.
That said, it is pretty clear that Judge Fidler is not going to issue an order allowing Spector to remain free on bail pending his appeal.
Therefore, any order granting bail pending appeal would necessarily have to be issued by the Court of Appeal.
Theoretically, Spector’s counsel could make a motion for bail pending appeal as soon as the notice of appeal (which could be filled in the trial court as early as the day that Spector is sentenced) is received by the Court of Appeal. (The Superior Court first must transmit the notice of appeal to that court and simultaneously notify all parties that a notice of appeal has been filed.)
However, filing a motion for bail pending appeal on the earliest possible date is not necessarily the best possible course of action for Spector.
It may enhance the motion’s chances of success if Spector waits to make that motion until his opening brief on appeal (AOB) is filed so the Court of Appeal can better assess the arguable merits of Spector’s appeal. If the Court of Appeal determines that Spector has articulated some facially compelling grounds for appeal, it may be far more inclined to grant Spector bail pending appeal—particularly in view of Spector’s age and general health.
The downside to waiting until the AOB is filed is time. Before that can happen the record on appeal must be prepared by the court reporter and the clerk of the court. Then Spector’s counsel will need at least 30 days (and probably more) to research, draft, and file the AOB. Best case, if Spector’s attorneys go that route, it could be another 120 days at the earliest before a motion for bail pending appeal is even on file, and more time for the Court of Appeal to evaluate and rule on the motion. A more realistic time frame might be 6 to 9 months from now.
One should keep in mind that if Spector is admitted to bail pending appeal it may not be in the amount of the current $1 million. Obviously, a criminal defendant has more incentive to flee following a conviction than before trial and the Court of Appeal may decide an increase is warranted, or it may grant the motion for bail pending appeal and remand the matter back to the trial court to fix the amount of bail.
What I meant by my earlier post is that in a case such as this where a decision to release a defendant on bail pending appeal would be politically unpopular (to say the least), it may take an order from the Court of Appeal to do the job, because trial court judges often don’t want to take that kind of heat from the voters in their community. They like to be reelected. Court of Appeal justices are more insulated (but not immune) from the political process.
The bottom line is that it may be some time before Phillip Spector can secure his release from prison pending appeal and that may not happen at all.
It is extremely rare and difficult to obtain a defendant’s release on bail following a murder conviction.
If anyone can accomplish that it is Spector’s current appellate counsel, but it is still a long shot.
THE ISSUE OF BAIL PENDING APPEAL IS ADDRESSED BY CALIFORNIA PENAL CODE SECTION 1272, WHICH READS:
“Release on bail pending appeal under subdivision (3) of Section 1272 shall be ordered by the court if the defendant demonstrates all the following:
(a) By clear and convincing evidence, the defendant is not likely to flee. Under this subdivision the court shall consider the following criteria:
(1) The ties of the defendant to the community, including his or her employment, the duration of his or her residence, the defendant's family attachments and his or her property holdings.
(2) The defendant's record of appearance at past court hearings or of flight to avoid prosecution.
(3) The severity of the sentence the defendant faces.
(b) By clear and convincing evidence, the defendant does not pose a danger to the safety of any other person or to the community.
Under this subdivision the court shall consider, among other factors, whether the crime for which the defendant was convicted is a violent felony, as defined in subdivision (c) of Section 667.5.
(c) The appeal is not for the purpose of delay and, based upon the record in the case, raises a substantial legal question which, if decided in favor of the defendant, is likely to result in reversal.
For purposes of this subdivision, a “substantial legal question” means a close question, one of more substance than would be necessary to a finding that it was not frivolous. In assessing whether a substantial legal question has been raised on appeal by the defendant, the court shall not be required to determine whether it committed error.
In making its decision on whether to grant defendants' motions for bail under subdivision (3) of Section 1272, the court shall include a brief statement of reasons in support of an order granting or denying a motion for bail on appeal. The statement need only include the basis for the order with sufficient specificity to permit meaningful review.”
IT IS THE COURT OF APPEAL’S EVALUATION OF THE CRITERIA SET FORTH IN SUBDIVISION (3) (C) (THE APPEAL ….BASED UPON THE RECORD IN THE CASE, RAISES A SUBSTANTIAL LEGAL QUESTION WHICH, IF DECIDED IN FAVOR OF THE DEFENDANT, IS LIKELY TO RESULT IN REVERSAL.”) THAT IS LIKELY TO BE ENHANCED IF SPECTOR WAITS UNTIL THE RECORD ON APPEAL AND THE AOB IS FILED BEFORE HE MAKES THAT MOTION.
NOTE THE HIGH BURDEN OF PROOF (CLEAR AND CONVINCING EVIDENCE) BORN BY THE DEFENDANT ON ALL OF THE PREREQUISITE ISSUES NECESSARY TO GRANT BAIL PENDING APPEAL.
I suggest that due to CA Penal Code section 3b, (the murder conviction, along with the facts of his past history brandishing guns at people), it is very unlikely Mr. Spector will be released on bail.
And I respectfully disagree with your assertion that there was misconduct during the second trial. From what I observed, Judge Fidler exercised fair and impartial control over the parties and Mr. Spector was convicted on the merits of the case.
Dear Anon:
There is no Penal Code Section “3b”.
Perhaps you meant Penal Code Section 1272, subdivision (b)--The court's statutory mandate to consider whether the defendant was convicted of a violent felony in assessing the criterion of whether the defendant has demonstrated that he is not a danger to any person or the community?
Our take on that issue is as follows.
Clearly, murder is a violent felony as defined in subdivision (c) of Section 667.5. However, this is only one factor for the court to consider in deciding whether the defendant has met his burden of demonstrating that he “does not pose a danger to the safety of any other person or to the community.”
Otherwise, the legislature could have (and presumably would have) specified that no defendant who was convicted of a dangerous felony would be admitted to bail pending appeal, period.
Moreover, the prosecution argued to the trial court and to the jury that Phillip Spector is only a danger when two things happen: 1. He gets drunk and 2. He has firearms in his possession.
In addition, the court could order as a condition of granting bail pending appeal that a. Spector not be in possession of any firearms (and that all firearms currently in his possession be surrendered to the police or sold), that; b. Spector not be in possession of or use any alcohol or drugs except for which he has a prescription; c. that also law enforcement would have the right to search Spector or his residence day or night without notice or probable cause for guns, drugs or alcohol; and d. could also impose a random drug and alcohol testing regimen.
Combined with house arrest, electronic monitoring, and 24/7 security guards posted at both gates of the Spector residence (at Spector’s expense)—we do not see how anyone could argue that Spector poses a danger to any other person or to the community or that he would be a flight risk.
We think the main impediment to granting Spector bail pending appeal is the political fallout that could result from a public perception that a clearly guilty defendant was being allowed to further delay his punishment for murder. (We do not believe that Spector is “clearly guilty” or that this is a legitimate bail consideration, but clearly we are not “most people”.)
REGARDING WHETHER REVERSIBLE ERROR OCCURRED IN THE RETRIAL, very few legal experts will tell you that Spector’s position on appeal is not at least arguable.
Setting aside the propriety of admitting the so called Section 1101 evidence (which we have already discussed at length on this blog) even if such evidence is admitted it may not be used to show bad character or to argue that the defendant had a propensity to commit the crime charged. (There is an exception for certain charged sex crimes not relevant here.)
But the prosecution used the Section 1101 evidence not simply to argue “identity” or the lack of accident, but rather to argue—throughout the closing arguments—that Phillip Spector is a “demon”, a “manic” a “murder waiting to happen”, a “game of Russian Roulette”, and that he has the propensity to kill. Indeed, the prosecution argued in effect that it is miracle of chance that Spector had not murdered someone years before.
This is PROSECUTORIAL MISCONDUCT and Doron Weinberg preserved the issue on appeal with contemporaneous objections during trial.
The second issue related to the admission of Section 1101 evidence is whether or not the court erred in rejecting the special jury instruction the defense submitted on how the jury was supposed to treat such evidence. In as much as a highly regarded appellate specialist drafted or at least reviewed that proposed special instruction, I would be very surprised if the Court of Appeal does not find some trial court error there.
Yes, clearly you are not "most people", you are a clearly superior person........
Anyone keeping track of the Susan Atkins Parole Hearing? The hearing began today at 1:30 pm, and no decision has been reached yet.
Blogonaut: Are you aware how long these hearings take?
Note to All: Atkins was part of the Manson Family - convicted for mudering 5 people. She's now 85% incapacitated because of brain cancer and an amputated leg. By law she must be released if she is no longer a threat to society.
But as mentioned in this Blog regarding public opinion > the Parole Board has continuously thrown their legal duty out the window regarding Ms. Atkins.
Dear Anon, May 28, 2009 4:46 PM:
That is not what we meant to convey.
We mean only that our view that Phillip Spector is not "clearly guilty" and was denied a fair trial is not in sync with the majority of public opinion.
We have never claimed any moral or intellectual superiority.
Samuel:
We discuss the parole issue in our more recent post of today.
http://blogonaut-blogonaut.blogspot.com/2009/05/phil-spector-sentencing-today-spector.html
Incapacitated or not, we would not like to live next door to a Mansion Girl.
We would have no trepidation about living next door to Phil Spector—as long as we did no have to move to Alhambra.
Fair 'nuff Blogo. The choice to live next door to:
1. 68 year old man in need of Viagra with a history of holding people who want to leave his residence hostage (including a TV star for three days who refused to testify because of career issues).
v.
2. A bed-ridden woman dying of brain cancer who can utter a few words a day, who would live in a VERY upscale community with her attorney husband.
You do bring up a valid issue though, regarding trepidation of living next door to her. The Manson followers out there - worldwide - may try to make a 'name' for themselves in Ms. Atkins' community as a thank you memorial.
That said, Ms. Atkins has done more for society's indigent while in prison than Spector has done for anyone - except for marrying a waitress.
Samuel:
A great many women have worked as waitresses at some point in their lives, including the ones who serve you Samuel. It is nothing to be ashamed of, unlike your blatant snobbery (and you have not even been admitted the bar yet).
I once represented a man (court appointment) who was married to a former Mansion Girl. (If you looked closely, you could see the faint cross that they all burned into their forehead with a hot knife.)
She parted ways with Charlie though and (many years before my representation of her husband on a fairly minor felony matter, before his parole on murder charges) the two of them carried on the “family business”—which was residential armed robberies.
He and she killed two former associates then cut their hands, heads and feet off and buried the parts separately.
That kind of killing takes a certain resolve.
You would never know by looking at this attractive woman that she was anything other than a sweet, benign former hippy—who weighed all of 90 pounds dripping wet.
However, I have no doubt that Susan Atkins (or any other Mansion Girl who has killed in a heinous manner—and let’s face it, carving a baby out of her pregnant mother’s stomach and then using the blood as paint to write on the walls qualifies) is perfectly capable of crawling or wheeling over to you and cutting your throat with her last dying breath if she took a mind to. No parole please.
Say what you want about Phillip Spector, but even if he was guilty as charged, one thing I am confident of is that he is no danger to anyone—especially to any of his neighbors in Alhambra.
What I would be interested in from you, Samuel, since you are the LS that Sprocket has described as attending yesterday’s sentencing hearing, is your first hand observations—the sights, sounds and smells of what it was like to be in that courtroom yesterday.
What do you say?
PS: You will be a 68 year old man soon enough. Trust me, when you get to be about 50, 68 will not seem “old” to you anymore.
I say that Sharon Tate's baby was not cut out of her body. Ms. Atkins took a towel and wiped it on Ms. Tate's chest wounds, and wrote 'PIG' on the door, your facts are incorrect.
Although I appreciate you sharing your experiences connected to the Manson family, they have nothing whatsoever to do with Susan Atkins' Parole Hearing. According to your analogy, anyone who is Catholic should be locked up as a murdering pedophile because of the Crusades and plethora of child molestation convictions of Catholics.
Interesting that you are vehemently calling for Spector's case to be reversed and dismissed because the trial court did not follow the law, yet you totally support the Parole Board NOT following the law in determining whether Ms. Atkins should be released.
She cannot crawl nor wheel herself anywhere to cut anyone's throat. While in prison she has saved lives, tutored the indigent, been commended by a CA Governor along with state officials in Florida and Texas, and was the visitor's receptionist at her prison until the press found out about it!
The man who prosecuted and asked for her death, Vincent Bugliosi, has called for her release as has the warden of her prison. I don't see that happening with Spector.
Incidentally, she marries people around her own age, maturity, and intelligence level. She is now close to death, invalid, and could not kill a fly. THE LAW DICTATES SHE BE RELEASED.
Finally, when a 62 year old multi-millionaire marries a 23 year old waitress who has not yet begun to remotely EQUAL any of the attributes possessed by Spector - this strongly implies: CONTROL FREAK - as several women testified to, and which there are three times as many documented events of his unlawful conduct to those who did not submit to his demands.
Samuel:
Did your law School class project include advocating for Adkins’ parole?
Yikes!
In any event, we see no analogy with the Spector case on any level.
As far as we concerned, men and women over the age of 18, be they lesbian, gay, transgender, or straight, should have the right to marry whomever they wish (with the exception of certain close relatives or people who are already married).
Phil Spector’s marriage (while certainly not uncommon in Hollywood in terms of age difference) is just none of your business and is not relevant to the discussion, nor is your snobbery about former waitresses. It’s just a cheep shot.
I would like to hear about your first hand observations at the sentencing hearing though. Why don’t you fill us in?
Gee Samuel, I wasn't aware you knew Mr. and Mrs. Spector on such an intimate level. I'm sure that would be news to them. Furthermore, why don't you us give a first hand report on what went on in the courtroom? Or do you have to check the other blogsite to get your information because maybe, just maybe, you just weren't there?
We think maybe Samuel doesn’t want to reveal the fact that he was at the Spector sentencing (and other parts of the trial) instead of at the library studying for the bar…and/or that he was there with Sprocket.
Nevertheless Samuel, we would like to hear your first hand observations.
Ok, ok - just two sentencing observations:
1. Spector didn't look at his wife once.
2. Aloha finally wore pants to a Court of law rather than wearing gym shorts, which in my opinion is a show of disrespect. While skipping your duties as a school teacher, you could have at least gone home to change.
Samuel,
Now I know for a FACT that you weren't in the courtroom because in Judge Fidler courtroom you are NEVER allowed to wear shorts. The deputies would not allow you inside.
You looked good in blue, Aloha. The button was sort of weird though. Do you wear Phil Spector buttons while teaching physical education at a school? Do you think you are infatuated with Phil Spector as many of of the trial observers did?
Did a members of the jury think your appearances were hilarious, looking like you just walked out of the gym?
I'm just asking.
Even IF Phil Spector was guilty of this crime there is no way he deserves 19 years in prison. Here's a fellow who essentially has no record, has been an extremely productive person in life, and not only are the tactics shown by the prosecution questionable, the book is thrown at him. Wow!
What's almost remarkable is the lack of depth shown by the vast majority of people commenting on Mr Spector. Here we see shots being taken that are purely superficial, ie: his hair, his lack of hair, his face, his height, etc etc. I'd like to see pics of the people making these absurd comments that have nothing to do with the case. ( although wasn't there a famous lawyer who said something along the line that pretty people are convicted less? )
Why I say it's almost remarkable is because of the lack of depth from such a large percentage of the population in general and I'm not talking about the spector case here. This is in general. The dumbing down has been going on for decades and it shows. It certainly shows in most message boards that are discussing Phil Spector.
Thankfully we have Blogonaut and how I wish I found this place months ago. This place is for the most part a pleasant change from the superficial cacklinig found on some of the "other" blogs and message boards although there are a few...........
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